Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

Quick! What short form will you use in your brief to identify your client, Porsche Cars of North America, Inc.?

If your guts are screaming “PCNA,” then your guts need reworking.

But I chose this example for my column today because I’ve seen this very thing happen. I’ve seen a lawyer (at a perfectly good firm) assign the short form “PCNA” to this entity.

What was he thinking?

If I’m at the steering wheel of the case, then we’re not representing PCNA.

Who do we represent?

We represent Porsche, for heaven’s sake. Porsche.

It’s a word. I understand it. It creates an image in my mind. It communicates with me quickly and compellingly. That’s (generally) good….

(I tucked in the “generally” because if Porsche were somehow being blamed for the death of a pedestrian in an accident caused by driving at excessive speed, I might prefer not to represent an entity called “Porsche.” PCNA might be fine. Or maybe SMCI, for “Slow-Moving Cars, Inc.” But that’s a different situation. The case in which I was involved was a dispute among various car manufacturers and their dealers. I had “GM” — a perfectly good short form, because “GM” is used as widely as “General Motors.” The guy who represented Volkswagen should have paused to think — “Volkswagen” or “VW”? That’s a close call. If you’re bumping up against a page limit, go with VW, to save space. If your brief is constrained by a word limit, this issue is a judgment call. The guy who had Ford in my case had a no brainer — it’s “Ford,” not “Ford Motor Company (hereinafter ‘FMC’).”)

So who am I?

(That was a rhetorical question. I don’t want to hear a chorus of, “You’re a compulsive nutcase; that’s who you are.”)

I’m Aon. I’m not “Aon Corporation (hereinafter ‘AC’).” If one of our affiliated companies is named in a case, and only that one entity is involved (so there’s no chance for confusion), that other entity can also be Aon. Thus, we should refer to “Aon Services Corporation” as “Aon,” because “ASC” is gibberish, whereas “Aon” is a word. (Well, okay, Aon isn’t actually a word in English; you’ve got me there. But it was a word in Gaelic, and it meant “oneness.” And today, Aon is a reasonably well recognized trade name. In any event, “Aon” is a whole lot easier to understand than “ASC,” which doesn’t mean anything in either English or Gaelic.)

I’m not stopping there.

I’m going to take my thesis a step further, because I’m a radical. (A radical compulsive nutcase, maybe. But a radical.) When I was in private practice, I’d drop the parenthetical with the “hereinafter” crap. When I’m writing a brief, I’ll put some limited trust in my audience. I’m ready to assume that I can safely write the following sentences without losing my reader: “On May 1, 2010, Joseph R. Smith crossed the street. Smith did not look at the traffic light . . . . ”

I understand that, in the eyes of the folks still wearing fedoras, this is heresy: “If you’re going to use anything other than the exact name of a party, you must define it! Otherwise, there’s ambiguity! Your reader won’t understand that Joe Smith is ‘Smith’!”

Calm down. Maybe there’s some risk of ambiguity in a contract, where complete precision is necessary (I’ll defer to others on that), but I’m pretty comfortable that no one will be confused when we refer in a brief to Aon Corporation as Aon or Joe Smith as Smith without pausing to explain our convention.

In any event, I’m happy to run that risk, for the sake of persuasion and not interrupting the flow of a brief by creating unnecessary short forms.

Alphabet soup

One final point: The rule that I’ve just stated is not limited to the names of parties. Words are (generally) better than letters, period.

Most law firms seem to understand that the “Complaint” in a lawsuit can safely be called the “Complaint.” But throw in an amendment, and lawyers lose their minds. Must we really call the First Amended Complaint the “FAC”? What the heck is an FAC? Those letters don’t mean anything to a reader. Let’s just define the First Amended Complaint to be the “Complaint” (I’ll grant you a parenthetical to do that, because there is in fact the possibility of confusion if we don’t define the term) and then move on in English.

If the iteration of the complaint matters, be smart. We can distinguish a First Amended Complaint from a Second Amended Complaint without descending into madness. The judge really won’t be moved by sentences that tell us, “In the SAC, unlike the FAC, plaintiff alleged . . . ” How about: “But plaintiff abandoned the allegations in the First Complaint when she moved on to the Second . . . “?

Words! Words are great! Use ‘em!

IMHO.

TTFN.

(LOL.)

Earlier: Prior installments of Inside Straight


Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law.

You can reach him by email at inhouse@abovethelaw.com.


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